Early v. State

• Decision Date: 19 October 1971
• Docket Number: No. 33,33
• Parties: Frank EARLY v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 182

13 Md.App. 182

282 A.2d 154

Frank EARLY v. STATE of Maryland.

No. 33.

Court of Special Appeals of Maryland.

Oct. 19, 1971.

David L. Saltzman, Baltimore, for appellant.

James G. Klair, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Milton B. Allen, State's Atty., and Peter Karceski, Asst. State's Atty., for Baltimore City on brief, for appellee.

Argued before MORTON, ORTH and POWERS, JJ.

ORTH, Judge.

The basic question in this case is whether the judge presiding at the bench trial of Frank Early in the Criminal Court of Baltimore was clearly erroneous in his judgment that the evidence established that Early feloniously murdered Hubert Johnson, wilfully and of premeditated malice aforethought, and that he unlawfully conspired with Theodore Daniels and Henry Jones and others to murder Johnson. ¹ Maryland Rule 1086; Williams v. State 5 Md.App. 450, 247 A.2d 731. There is no doubt that the manner of Johnson's death was homicide. The report of the autopsy so stated, adding 'stabbed by unknown assailant.' Johnson was found dead in his home in his bed, lying on his back in a pool of blood. The pathological diagnoses of the Medical Examiner included 'Multiple stab wounds (151) of head, neck, trunk and extremities involving heart, aorta with major branches, jugular system, trachea, lungs, kidneys, small bowel.' It was the opinion of the Medical Examiner that 'Hubert Johnson died of multiple stabwounds.' stabwounds.'

Ordinarily the autopsy report and the testimony of the State's witness James Henry Watkins, Jr. would be ample to prove the offenses beyond a reasonable doubt. Watkins testified that he talked to Henry (Hank) Jones 'the same day of the homicide, later on that evening.' Watkins asked Jones what had happened. Jones said: '(T)hey had went up to wherever this was (Johnson's home) ² * * * and this is what Hank told me, he said that he sat in the car and Jody (Frank Early) and Ted Daniels went into the house and then he went on to explain it. He didn't have anything to do with it but that Johnson was dead.' Watkins said that Jones told him that Daniels' alibi was to be that he was in Philadelphia at the time of the murder. Watkins further testified that six days after the murder, on 25 July, Early said that he had gone to Athal Gate Lane on 19 July and killed the man who lived there, indicating that Daniels and Jones had been with him. According to Watkins, Early had agreed to kill Johnson for a price of $200 to be paid by Jones who had asserted he 'wanted the bitch rubbed out.' Watkins knew that Jones was a homosexual and 'gathered' that Daniels was also. Watkins testified that Jones told him that Daniels wanted to get rid of Johnson with whom Daniels was living because Daniels and Jones were in love and were now going together. The credibility of a witness is for the trier of fact. Borman v. State, 1 Md.App. 276, 229 A.2d 440. The lower court believed Watkins. ³ Thus, although the evidence would not have been sufficient to sustain the convictions without his testimony, under normal circumstances it would have been enough with his testimony. But we believe that Watkins was an accessory before the fact to the felony of murder and a principal in the misdemeanor of conspiracy. ⁴ He was therefore an accomplice, that is 'one who knowingly, voluntarily, and with common criminal intent with the principal offender, unites with him in the commission of the crime either as a principal or as an accessory before the fact.' Strong v. State, 261 Md. 371, 377, 275 A.2d 491, 494, quoting Burley v. State, 5 Md.App. 469, 472, 248 A.2d 404. As Watkins was an accomplice, Early could not be convicted on his uncorroborated testimony.

The Court of Appeals has fully considered the propriety of the rule that a person accused of crime may not be convicted on the uncorroborated testimony of an accomplice. The rule as it is applied today is substantially the same as when it was formulated in 1911 by the decision in Luery v. State, 116 Md. 284, 81 A. 681, in which the historical background as well as the reasoning behind the rule were set forth. In Watson v. State, 208 Md. 210, 217, 117 A.2d 549, the necessity of corroboration of an accomplice's testimony was stated to be firmly established in this State. Recognizing that many courts have refused to follow the rule requiring corroboration of the testimony of an accomplice and that some authorities, such as Wigmore, did not support the requirement of corroboration, see Wright v. State, 219 Md. 643, 647 and 649-650, 150 A.2d 733, the Court of Appeals has not retreated from its position and has steadfastly applied the rule. See id. notes 2 and 3 at 648, 150 A.2d 733; McDowell v. State, 231 Md. 205, 189 A.2d 611, in which cases after Wright dealing with corroboration were cited at 213; Veney v. State, 251 Md. 158, 168-169, 246 A.2d 608. As recently as Strong v. State, supra, decided 7 April 1971, the Court flatly stated with regard to the testimony of an accomplice that 'it is established that his testimony would have to be corroborated for it to sustain a conviction.' At 377, 275 A.2d at 495. This Court from its inception has consistently followed the dictate of the Court of Appeals and invoked the rule. See Bright v. State, 1 Md.App. 657, 232 A.2d 544, decided 22 August 1967, Foxwell v. State, Md.App., 281 A.2d 123 and the myriad of opinions intervening, especially Burley v. State, supra, cert. denied, 9 April 1969.

The lower court found that Watkins was not an accomplice and in that we find its judgment on the evidence clearly erroneous. In Foster v. State, 11 Md.App. 40, 46, 272 A.2d 810, 813, we repeated the definition of an accomplice set out in Burley v. State, supra, and approved in Strong v. State, supra, as 'one who knowingly, voluntarily, and with common criminal intent with the principal offender unites with him in the commission of the crime, either as a principal or as an accessory before the fact.' We continued, '* * * and this definition encompasses advocating, encouraging, aiding or abetting the commission of the crime, * * *. To be an 'aider,' a person must assist, support or supplement the efforts of another; to be an 'abettor,' a person must investigate, advise or encourage the commission of a crime and may in some circumstances include a person who is present at the commission of the crime without giving active assistance.' (citations omitted). The generally accepted test as to whether a witness is an accomplice was stated in Burley, at 472, 248 A.2d at 406, to be 'whether he himself could have been convicted for the offense, either as principal or accessory before the fact.' ⁵ We said in Burley, at 473,248 A.2d at 404 that the fact that a witness is an accomplice must be shown by proof, like any other fact, but the burden is on the defendant who asserts it. We observed that only a preponderance of the evidence is necessary to prove that a witness is an accomplice. Upon a bench trial, our function on appellate review is to determine whether the judgment of the court on the evidence was clearly wrong under Maryland Rule 1086.

An accessory before the fact in a felony is one who procures, counsels, or commands the deed perpetrated, but who is not present, actively or constructively, at such perpetration. Agresti v. State, supra, at 280, 234 A.2d 284. We feel that Watkins' own testimony showed him to be an accessory before the fact to the murder and a principal in the conspiracy. A pertinent synthesis of it follows. Watkins, Early and Jones knew each other as they lived in an apartment building at 902 Lake Drive, Watkins and Early each having an apartment on the the second floor and Jones on the eighth floor. About the middle of June 1969 Jones had met Watkins in front of the building and Jones 'asked me if I knew anybody who-his exact words, 'Anybody who could get rid of somebody for some money.' Now, he said, 'Beat them up, run them out of town or anything.' These were his words * * *.' Later, however, Watkins learned the man Jones wanted to get rid of was Johnson. He told Jones he did not know anybody for that and for a month made no effect to get somebody to do the job for Jones. On 19 July about 3:00 a. m. he was on the front steps of the apartment building with Early. A yellow Malibu automobile with a black top pulled up. It belonged to Daniels. There were three occupants, one of whom was Jones who got out and entered the building. A short time later after going to the apartment of a friend named Douglass on the eighth floor to get beer, they passed Jones standing in the door of his apartment. Jones invited them in to have a beer. Out of the hearing of Early and Douglass, Jones asked Watkins if he remembered the conversation they had about a month before. Jones asked Watkins again if he knew somebody to do the job and Watkins said that he 'didn't know anybody who would do this.' Watkins, Early and Douglass returned to the front steps. Douglass left to go to bed. On direct examination Watkins said: 'Well, it was then at this time that I said to Jody (Early) and in a joking manner, I said, 'Jody-' I said, 'Hank wants somebody-' and my words were, 'Hank wants somebody knocked off for some money', like that, and I dropped it.' On cross-examination he said that he told Early 'as a gesture, you know, what Hank Jones had said to me in the apartment * * * that he wanted the bitch rubbed out.' As recounted in his direct examination, '(a) few minutes later Jody said, 'Well, where is Hank', and I looked at him and I asked him was he serious and he said yes, and I said, 'Well, he's upstairs'. Well, he said, 'Tell him I want to see him'. I said, 'Okay". Shortly thereafter about 4:00 a. m. Watkins went to Jones' apartment. Watkins told him: 'Hank, Jody wants to see you concerning the deal we were talking about.' Jones replied: 'Okay, tell him I'll get in touch with him' and Watkins answered, 'Okay'. Watkins went back to the front steps...